Evidence Necessary in Stay for Delay

In seeking a stay for delay in criminal or quasi-criminal matters evidence, especially of prejudice to the accused, is critical. Absent evidence, by affidavit or live testimony, an 11(b) application cannot succeed (except, perhaps, in the most extreme of cases where prejudice may be inferred if the delay is extraordinary -- in fairness such cases are unlikely to be seen as the prosecution would likely withdraw).

The factors to consider as set out by the Supreme Court in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) generally require evidence by affidavit, transcript or, sometimes, live testimony, to be put before the court:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources; and
(e) other reasons for delay, and
4. prejudice to the accused.


This point (the need for evidence), while it might seem obvious, is worth emphasizing. It appears that proceedings for a stay in the Ontario Court of Justice, especially where new licencees are acting, are often brought without evidence. The licencee seeks a stay based purely on delay as shown on the court record without other materials. In such a situation the proper result is for the court to dismiss the application as the onus of proof has not been met.

Friday's Court of Appeal decision in R. v. MacMunn, 2008 ONCA 520, upholding a stay, makes the importance of affidavit evidence quite clear:


Did the trial judge fail to balance the prejudice to the respondent with the societal interest in having a trial on the merits?

[39] Counsel for the Crown submits that the actual prejudice the respondent suffered as a result of the delay as opposed to the charges against him was minimal. He further submits that the trial judge erred in failing to balance the nature of the prejudice against the societal interest in having a trial on the merits.

[40] There was a significant amount of evidence of prejudice which was attributable to the delay as opposed to the charges themselves. Indeed, there were three pages comprising eleven paragraphs in the respondent’s affidavit under the heading: “How the delay in this case has affected me”. There was no challenge to this evidence by way of cross-examination.

[41] At the outset of his reasons for judgment, the trial judge referred to the legal principles, derived from Morin and other cases, which should govern his consideration of this case. In particular, he said:

The Court of Appeal and the Supreme Court of Canada, on countless occasions, have reminded trial courts that s. 11(b) is designed to protect both the individual rights of an accused, and the rights of society, including the community’s interest in law enforcement, by having those who break the law tried quickly and having those accused of a crime dealt with fairly (see, for example, the Court of Appeal decision in R. v. Queshi (2004), 190 C.C.C. (3d) 453 and the Supreme Court of Canada decision in R. v. Morin (1992), 71 C.C.C. (3) 1). As was observed by Sopinka J. in Morin, it is now mandated that the assessment of whether an accused’s right to be tried within a reasonable time has been infringed involves the balancing of the interests that s. 11(b) is designed to protect against ‘…the factors which inevitably lead to delay or are otherwise the cause of delay’.

In that respect, the trial judge is obliged to enter upon a balancing exercise, which requires an analysis as to whether or not the delay experienced in any particular case is constitutionally unreasonable. There are four factors, which are critical to this assessment:
- the length of the delay
- any waiver by the accused of the time periods involved;
- reasons for the delay; and
- any prejudice that the accused in fact or inferentially suffered.

[42] In respect of prejudice, the trial judge said:

The Court of Appeal reiterated in R. v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91 that an assessment of prejudice is a significant aspect of the analysis required in an application of this nature. That being said, factors inherent in the criminal charge process in and of itself, such as the stigma of being charged, the terms of release, and the circumstances of arrest are not of direct concern. It has also long been held, however, that prejudice can be inferred from the mere fact of an overall delay, even in the absence of actual prejudice.

[43] The trial judge was well aware of his obligation to carry out the balancing exercise including his obligation to consider not only the rights of the individual accused but society’s interest in having persons charged with crime tried on the merits.